EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS 1/28/89
OF R 3/8/89
THE PBSJ CORPORATION R 1/9/93
R 1/7/95
ARTICLE I
DEFINITIONS
As used in these Bylaws, unless the context otherwise required, the
term:
"Affiliate" means a person or group of people that is controlled by or
in common control with, the Corporation.
"Board" means the Board of Directors of the Corporation.
"Bylaws" means the restated and amended bylaws of the Corporation, as
further amended from time to time.
"Articles of Incorporation" means the initial articles of incorporation
of the Corporation, as amended, supplemented or restated from time to time.
"Corporation" means The PBSJ Corporation, a Florida corporation.
"General Corporation Act" means the General Corporation Act of the
State of Florida, as amended from time to time.
"Principal Office" means the Corporation's principal headquarters or
any other place within or without the State of Florida as the Board may
designate from time to time.
"Shareholders" means the shareholders of the Corporation.
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ARTICLE II
MEETING OF SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the Shareholders of this
Corporation shall be held annually, within 120 days after the end of the
Corporation's fiscal year, on such date and at such time and place as may be
designated by the Board. Business transacted at the annual meeting shall include
the election of directors of the Corporation.
Section 2. Special Meetings. Special meetings of the Shareholders shall be held
when directed by the President or the Board, or when requested in writing by the
holders of not less than 10% of all the shares entitled to vote at such
meetings. A meeting requested by Shareholders shall be called for a date not
less than ten nor more than sixty days after the request is made unless the
Shareholders requesting the meeting designate a later date; provided, that a
meeting called by unanimous request of all Shareholders may be held at any time
to which they agree. The call for the meeting shall be issued by the Secretary,
unless the President, Board of Directors, or Shareholders requesting the calling
of the meeting shall designate another person to do so.
Section 3. Place. Meetings of Shareholders shall be held at the Principal Office
of the Corporation or at any other place designated by the Board.
Section 4. Fixing Record Date. For the purpose of determining Shareholders
entitled to notice of, or to vote at, any meeting of Shareholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or for the purpose of determining Shareholders entitled to
receive payment of any dividend or the allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock,
or for the purpose of any other lawful action, the Board may fix, in advance, a
date as the record date for any such determination of Shareholders. Such date
shall not be more than 60 nor less than 10 days before the date of such meeting.
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Section 5. Notice. Written notice stating the place, day and hour of the meeting
and, in the case of a special meeting of Shareholders, the purpose or purposes
for which the meeting is called, shall be delivered not less than 10 nor more
than 60 days before the meeting, either personally or by first class mail, by or
at the direction of the President, the Secretary or the officer or persons
calling the meeting to each Shareholder of record entitled to vote at the
meeting. If the notice is mailed at least 30 days before the date of the
meeting, it may be done by a class of United States mail other than first class.
If mailed, notice shall be deemed delivered when deposited in the United States
mail addressed to the Shareholder at his address as it appears on the stock
transfer books of the Corporation, with postage thereon prepaid and return
receipt requested.
Section 6. Notice of Adjourned Meeting. When a meeting is adjourned to another
time or place, it shall not be necessary to give any notice of the adjourned
meeting, provided that the time and place to which the meeting is adjourned are
announced at the meeting at which the adjournment is taken, and any business
which might have been transacted on the original date of the meeting may be
transacted at the adjourned meeting. If, however, after the adjournment the
Board fixes a new record date for the adjourned meeting, a notice of the
adjourned meeting shall be given as provided in this Article to each Shareholder
of record on the new record date entitled to vote at such meeting.
Section 7. Shareholder Quorum and Voting. A majority of the shares entitled to
vote, represented in person or by proxy, shall constitute a quorum at a meeting
of Shareholders.
If a quorum is present, the affirmative vote of a majority of the
shares represented at the meeting and entitled to vote on the subject matter
shall be the act of the Shareholders unless otherwise provided by law.
Section 8. Voting of Shares. Each outstanding share of common stock shall be
entitled to one vote on each matter submitted to a vote at a meeting of
Shareholders.
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Section 9. Proxies. A Shareholder may vote either in person or by proxy executed
in writing by the Shareholder or his duly authorized attorney-in-fact. No proxy
shall be valid after the duration of 11 months from the date thereof unless
otherwise provided in the proxy.
Section 10. Action by Shareholders Without a Meeting. Any action required by
law, these Bylaws, or the Articles of Incorporation of this Corporation to be
taken at any annual or special meeting of Shareholders, or any action which may
be taken at any annual or special meeting of Shareholders, may be taken without
a meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted, as is provided by law.
Within 10 days after obtaining such authorization by written consent,
notice shall be given to those Shareholders who have not consented in writing.
The notice shall fairly summarize the material features of the authorized
action, as is provided by law.
ARTICLE III
DIRECTORS
Section 1. Function. All corporate powers shall be exercised by or under the
authority of, and the business and affairs of the Corporation shall be managed
under the direction of the Board.
Section 2. Qualification. Directors need not be residents of Florida. A majority
of the Directors shall be Shareholders of this Corporation and full-time
employees of the Corporation or its Affiliates.
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Section 3. Presumption of Assent. A director of the Corporation who is present
at a meeting of the Board at which action on any corporate matter is taken is
presumed to have assented to the action taken unless he votes against such
action or abstains from voting in respect thereto because of an asserted
conflict of interest.
Section 4. Number. This Corporation shall have at least five Directors. The
number of directors shall be determined from time to time by the Board.
Section 5. Election and Terms. At each annual meeting, the Shareholders shall
elect directors to hold office until the next succeeding annual meeting. Each
director shall hold office for a term to which he is elected and until his
successor shall have been elected and qualified or until his earlier
resignation, removal from office or death.
Section 6. Chairman and Vice Chairman. The Board shall choose, from among its
members, a Chairman, who shall preside at all Shareholder meetings and all Board
meetings. The Chairman shall serve as the agent for the directors in all matters
falling within the scope of the resolutions adopted by the directors, and he
shall have such other duties as are provided by the Bylaws or by resolution of
the Board unless otherwise specified by resolution of the Board. He shall serve
as Chairman until a successor is chosen or until his earlier death, resignation
or removal.
The Board shall choose, from among its members, a Vice Chairman who
shall have the same powers and duties as the Chairman in the Chairman's absence.
Section 7. Compensation. The Board shall have the authority to fix the
compensation of directors. Nothing contained in this Section shall preclude any
director from serving the Corporation or any Affiliate thereof in any other
capacity and receiving proper compensation therefor.
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Section 8. Vacancies. Any vacancies occurring in the Board, including any
vacancy created by reason of an increase in the number of directors, may be
filled by the affirmative vote of a majority of the remaining directors though
less than a quorum of the Board. A director elected to fill a vacancy shall hold
office only until the next election of directors by the Shareholders. If there
are no remaining directors, the vacancy shall be filled by the Shareholders.
Section 9. Resignation; Removal of Directors. Any director may resign at any
time by written notice to the Corporation. Such resignation shall take effect at
the time specified therein, and, unless otherwise specified, the acceptance of
such resignation shall not be necessary to make it effective.
At a meeting of Shareholders called expressly for that purpose, any
director or the entire Board may be removed, with or without cause, by a vote of
the holders of a majority of the shares then entitled to vote at an election of
directors.
Section 10. Quorum and Voting. A majority of the number of directors fixed by
these Bylaws shall constitute a quorum for the transaction of business. The act
of a majority of Directors present at a meeting where a quorum is present shall
be the act of the Board.
Section 11. Executive and Other Committees. The Board may, by resolution adopted
by a majority of the full Board, designate from among its members an executive
committee and one or more other committees each of which, to the extent provided
in such resolution, shall have and may exercise all the authority of the Board,
except as provided by law.
Section 12. Annual Meetings. The Board shall hold an annual meeting for purposes
of the election of officers and the transaction of other business. The annual
meeting of the Board shall be held at such time and place as is specified in a
notice given as provided in Section 14 of Article III of the Bylaws for special
meetings of the Board or in a waiver of notice thereof. When practicable, such
meetings shall be held on the day when and at the place where the annual meeting
of Shareholders for the election of directors is held.
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Section 13. Place of Meeting. Regular and special meetings of the Board shall be
held at the Principal Office of the Corporation or at such other place as may be
designated by the person or persons giving notice or otherwise calling the
meeting.
Section 14. Time of Meeting. Regular meetings of the Board shall be held without
notice at the time and on the date designated by resolution of the Board.
Written notice of the time and place of special meetings of the Board shall be
given to each director by personal delivery, telegram or cablegram at least two
(2) days before the meeting.
Notice of a meeting of the Board need not be given to any director who
signs a waiver of notice either before or after the meeting. Attendance of a
director at a meeting shall constitute a waiver of notice of that meeting and
waiver of any and all objections to the place of the meeting, the time of the
meeting, or the manner in which it has been called or convened, except when a
director states, at the beginning of the meeting, objection to the transaction
of business because the meeting is not lawfully called or convened.
Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board need be specified in the notice or
waiver of notice of the meeting.
A majority of the directors present, whether or not a quorum exists,
may adjourn any meeting of the Board to another time and place. Notice of any
adjourned meeting shall be given to the directors who were not present at the
time of the adjournment and, unless the time and place of the adjourned meeting
are announced at the time of the adjournment, to the other directors.
Meetings of the Board may be called by the Chairman, the President of
the Corporation or by any two directors.
Members of the Board (or any committee thereof) may participate in a
meeting of the Board (or committee) by means of a conference telephone or
similar communications equipment
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by means of which all persons participating in the meeting can hear each other
at the same time. Participation by such means shall constitute presence in
person at a meeting.
Section 15. Action Without a Meeting. Any action required to be taken at a
meeting of the Board, or any action which may be taken at a meeting of the Board
or a committee thereof, may be taken without a meeting if a consent in writing,
setting forth the action so to be taken and signed by all the directors or all
the members of the committee, as the case may be, is filed in the minutes of the
proceedings of the Board or of the committee. This consent shall have the same
effect as a unanimous vote.
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of this Corporation shall consist of a
Chairman, President, such number of Vice Presidents as the Board may designate,
a Secretary, a Treasurer and such other officers as the Board may determine.
Such other officers and assistant officers and agents as may be deemed necessary
may be elected or appointed by the Board from time to time. Any two or more
offices may be held by the same person, except that the President may not also
be the Secretary or an Assistant Secretary.
Section 2. Compensation. Salaries or other compensation of the officers may be
fixed from time to time by the Board. No officer shall be prevented from
receiving a salary or other compensation by reason of the fact that he is also a
director.
Section 3. Chairman. The Chairman of the Board shall have such duties as may be
specifically assigned to him by the Board from time to time. The Chairman shall
preside at all meetings of the Board and of the Shareholders of the Corporation.
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Section 4. President. The President shall have the general and active management
of the business of the Corporation, and shall perform such duties as the Board
may from time to time prescribe.
Section 5. Vice-President. The Vice-President shall be the chief operating
officer and shall have the same powers and duties as the President in the event
the President is absent or otherwise incapacitated.
Section 6. Secretary. The Secretary shall have the custody of and shall maintain
all of the corporate records except the financial records; shall record the
minutes of all meetings of the Shareholders and Board; shall send out all notice
of meetings; and perform such other duties as may be prescribed by the Board or
President.
Section 7. Treasurer. The Treasurer shall have custody of all corporate funds
and financial records; shall keep full and accurate accounts of receipts and
disbursements and render accounts thereof at the annual meetings of the
Shareholders and whenever else required by the Board or President; and shall
perform such other duties as may be prescribed by the Board or President.
Section 8. Removal of Officers. An officer or agent elected or appointed by the
Board may be removed by the Board whenever in its judgment the best interest of
the Corporation will be served thereby.
ARTICLE V
STOCK CERTIFICATES
Section 1. Issuance. Every holder of shares in this Corporation shall be
entitled to have a certificate representing all shares to which he is entitled.
No certificate shall be issued for any share until the share is fully paid.
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Section 2. Form. Certificates representing shares in this Corporation shall be
signed by the President or any Vice President, if any, and the Secretary or any
Assistant Secretary, if any, and may be sealed with the seal of this Corporation
or a facsimile thereof. The signatures of the officers upon a certificate may be
facsimiles if the certificate is manually signed on behalf of a transfer agent
or registrar other than the Corporation itself or an employee of the
Corporation.
Section 3. Transfer of Stock. The Corporation shall register a stock certificate
presented to it for transfer if the certificate is properly endorsed by the
holder of record or by his duly authorized attorney.
Section 4. Lost, Stolen, or Destroyed Certificates. If a Shareholder shall claim
to have lost or destroyed a certificate of shares issued by the Corporation, or
that such certificate has been stolen, a new certificate shall be issued upon
the making of an affidavit of that fact by the person claiming the certificate
of stock to be lost, stolen or destroyed, and, at the discretion of the Board,
upon the deposit of a bond or other indemnity in such amount and with such
sureties, if any, as the Board may reasonably require.
ARTICLE VI
BOOKS AND RECORDS
Section 1. Books and Records. This Corporation shall keep correct and complete
books and records of account and shall keep minutes of the proceedings of its
Shareholders, Board and committees of directors.
This Corporation shall keep at its registered office or Principal
Office a record of its Shareholders, giving the names and addresses of all
Shareholders and the number of the shares held by each.
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Any books, records and minutes may be in written form or in any other
form capable of being converted into written form within a reasonable time.
Section 2. Shareholders' Inspection Rights. Any person who shall have been a
holder of record of one-quarter of one percent of the outstanding shares of the
Corporation or of voting trust certificates therefor for at least six months
immediately preceding his demand or shall be the holder of record of, or the
holder of record of voting trust certificates for, at least five percent of the
outstanding shares of the Corporation, upon written demand stating the purpose
thereof, shall have the right to examine, in person or by agent or attorney, at
any reasonable time or times, for any proper purpose its relevant books and
records of accounts, minutes and records of Shareholders and to make extracts
therefrom.
Section 3. Financial Information. Unless modified by resolution of the
Shareholders, not later than four months after the close of each fiscal year,
this Corporation shall prepare a balance sheet showing in reasonable detail the
financial condition of the Corporation as of the close of its fiscal year, and a
profit and loss statement showing the results of the operations of the
Corporation during its fiscal year.
Upon the written request of any Shareholder or holder of voting trust
certificates for shares of the Corporation, the Corporation shall mail to such
Shareholder or holder of voting trust certificates a copy of the most recent
such balance sheet and profit and loss statement.
The balance sheets and profit and loss statements shall be filed in the
registered office of the Corporation in Florida, shall be kept for at least five
years, and shall be subject to inspection during business hours by any
Shareholder or holder of voting trust certificates, in person or by agent.
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ARTICLE VII
DIVIDENDS
The Board may from time to time declare, and the Corporation may pay,
dividends on its shares in cash, property or its own shares, except when the
Corporation is insolvent or when the payment thereof would render the
Corporation insolvent, subject to the provisions of the General Corporation Act.
ARTICLE VIII
ISSUANCE, SALE AND REDEMPTION OF SHARES
Section 1. Issuance and Sale by Corporation; Authority/Consideration.
a. Issuance and Sale by Corporation; Authority. The Board must approve
the issuance and sale of all shares of the Corporation. Except as provided
below, shares may be owned only by employees of the Corporation and any
Affiliate thereof, The PBSJ Employee Profit Sharing and Stock Ownership Plan and
Trust, Part I of which is The PBSJ Employee Profit Sharing Plan and Trust and
Part II of which is The PBSJ Employee Profit Sharing and Stock Ownership Plan
(ESOP), and personal trusts of Shareholders, if approved by the Board. The Board
shall have the authority to permit a non-employee to own shares in the
Corporation who is (i) a director of the Corporation, or (ii) a spouse of an
employee of the Corporation or any Affiliate, or (iii) a child of an employee of
the Corporation or any Affiliate, provided that, at all times during the taxable
year, ninety-five percent (95%) of the corporation's shares by value shall be
held, directly or indirectly, by: (i) employees performing services for the
Corporation or an Affiliate, and (ii) retired employees who have performed
services for the Corporation or an Affiliate or the estate of an employee who
had performed such services.
b. Consideration. The consideration for all such shares shall be
determined as provided in Paragraph a. of Section 3 of this Article VIII. Unless
otherwise approved by the
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Board, shares shall not be issued by the Corporation until the full amount of
the consideration therefor has been paid.
Section 2. Redemption by Corporation.
a. Rule. Except as provided in paragraph b., below, of this Section 2,
when a Shareholder's employment with the Corporation or an Affiliate thereof is
terminated for any reason whatsoever, including death, the Shareholder, his
guardian, heirs, trustee, beneficiaries, or personal representative, as the case
may be, shall be required to offer all of his shares to the Corporation, and the
Corporation shall be required to purchase all of such shares for a price
determined in accordance with paragraph a. of Section 3 hereof, upon the terms
and conditions of Section 4 hereof. A Shareholder may sell some or all of his
shares to the Corporation while still in the employ of the Corporation or an
Affiliate, and the Corporation shall purchase such shares as provided in the
preceding sentence. Notwithstanding the foregoing, the ESOP may assume the right
of the Corporation to purchase such shares at a price and on the same terms and
conditions applicable to the Corporation except as otherwise provided by law or
in Section 5 hereof; provided however, that if the ESOP declines to assume such
right, the Corporation shall be obligated to purchase such shares in accordance
with the terms hereof. If the Corporation or the ESOP should be prohibited from
purchasing such shares under applicable law the other shareholders of the
Corporation shall have the right (but not the obligation) to purchase such
shares as provided in Section 6 of this Article VIII.
b. Exception; Separate Agreement. Notwithstanding the restriction in
paragraph a., above, a former employee of the Corporation or any Affiliate may
continue to own shares of the Corporation when such shares are subject to a
separate written share redemption or purchase agreement made by the corporation
and such former employee, and approved by a vote of over fifty percent (50%) of
the shares entitled to vote, before the termination of his employment.
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Section 3. Price Upon Issuance/Sale or Redemption.
a. Rule. Except as provided in paragraphs a. and c. of this Section 3,
the price per share for all shares issued, sold, purchased or redeemed by the
Corporation shall be an amount equal to the fair market value of such shares, as
determined by an independent appraisal. For this purpose, the valuation of the
shares shall be performed at least annually, and the price per share shall be
based on the value established by the most recent completed appraisal, subject
to applicable law.
b. Exception; Separate Agreement. If the provisions of paragraph a.,
above, are in conflict with the provisions of any separate written share
redemption or purchase agreement (as provided in paragraph b. of Section 2),
then the provisions of such separate agreement shall govern.
c. Stock Ownership Plan. The price per share for shares issued upon the
exercise of Stock Ownership Rights granted pursuant to The PBSJ Corporation
Stock Ownership Plan (the "Plan") shall be the Exercise Price for such shares
fixed in the manner provided in the Plan. The redemption price for such shares
shall be determined in the manner provided in paragraph a. of this Section 3.
Recipients of Restricted Shares granted pursuant to the Plan shall not be
required to pay for such shares, and such shares shall have no redemption value
prior to the expiration of three years from the date they were awarded, except
upon the death of the holder thereof. Upon the expiration of such three-year
period or the death of the shareholder, whichever occurs first, such shares
shall be deemed fully paid and shall be redeemable at a price determined in the
manner provided in paragraph a. of this Section 3.
Section 4. Purchase by the Corporation or ESOP.
a. Payment Options. In any share redemption or purchase, the
Corporation or the ESOP, as the case may be, shall have the option to pay the
total sum due for the shares redeemed or purchased all in cash, or any portion
in cash and the remainder in installments, or
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all in installments; provided however, that all of such payments shall be out of
funds legally available for such purposes under applicable law.
b. Installment Payments. Any sum the Corporation or the ESOP elects to
pay in installments shall be paid to the Shareholder, or his heirs,
beneficiaries, personal representative or guardian, as the case may be, over
such period as the Board or the ESOP Trustees may determine, provided that such
period shall not exceed five (5) years. Subject to applicable law, interest
shall be paid on any unpaid balance at a rate equal to the prime rate charged by
the Corporation's primary bank lender(s). The initial rate shall be the rate in
effect at the time of sale, and this rate shall be updated on December 31 of
each year to the rate in effect at that time. All or any part of the unpaid
balance may be prepaid in whole or in part at any time or times without penalty.
c. Apportionment of payments. In the event the corporation is indebted
to more than one former shareholder, or his guardian, or the heirs,
beneficiaries, or personal representative of a deceased Shareholder, incident to
the redemption of stock under this Article VIII, and there are insufficient
funds to pay all such payments as they fall due, then, the Board shall apportion
such funds as are, from time to time, available between/among such payments so
due.
d. Discretionary Powers of the Board. The Board shall neither be
prohibited nor in any way limited or restricted from utilizing funds available
for installment payment purposes for any corporate purposes, whatsoever, it
being only required that, in all matters respecting the accumulation and/or
disbursal of such funds, it consider what, in its judgment and discretion, will
be in the best short and long term interests of the Corporation, the
Shareholders, and any former Shareholders, or their guardians, or the heirs,
beneficiaries, or personal representatives of deceased Shareholders to whom the
Corporation may be indebted incident to the redemption of any shares under
paragraph a. of Section 2. Additionally, except as otherwise specifically
provided in this Article VIII, when any provision of the Bylaws shall either
explicitly or inferentially require interpretation, or when any such provision
shall allow, permit or require
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discretionary action, the Board shall have full power and authority to make such
interpretation and/or to take such discretionary action as it deems proper.
Provided, however, if a Shareholder, former Shareholder, or his guardian, or the
heirs, beneficiaries or personal representative of a deceased Shareholder
contend that the Board has not made every reasonable effort to make timely
installment payments, as provided for under this paragraph d., then such person
or persons may bring an action (based upon but restricted to such contention)
for specific performance in a court of competent jurisdiction.
e. Exception; Separate Agreement. If the provisions of paragraph a.
through d., above, are in conflict with the provisions of any separate written
share redemption or purchase agreement (as provided in paragraph b. of Section 2
hereof), then the provisions of such separate agreement shall govern.
Section 5. Delivery of Share Certificates.
a. Rule. Upon payment of any cash and/or upon acknowledgment by the
Corporation or the ESOP of any sum to be paid in installments, the Shareholder,
his guardian, or his heirs, beneficiaries, or personal representative, as the
case may be, shall forthwith deliver the certificates representing such
Shareholder's shares to be sold to the Corporation or the ESOP, as the case may
be. If the Corporation elects to pay the purchase price in installments, such
number of shares as shall be represented by any cash payment (based on the
redemption price per share) shall belong to the Corporation, without restriction
or limitation; such number of shares as shall be represented by the sum to be
paid in installment payments (based on the redemption price per share) shall be
held in escrow by a person designated by the Directors, until the sum due for
said shares is paid, except that if, as and when such sum is from time to time,
reduced, shares representing each such reduction (based on the redemption price
per share) shall become the property of the Corporation, without limitations or
restrictions. If the ESOP elects to pay the purchase price in installments, it
shall deliver an unsecured promissory note to the Shareholder, his guardian, or
his heirs, beneficiaries or personal representative, as the case
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may be, in the amount of the unpaid balance, and the shares so purchased shall
be the property of the ESOP, without any limitations or restrictions.
b. Exception, Separate Agreement. If the provisions of paragraph a.,
above, are in conflict with the provisions of any separate written share
redemption or purchase agreement (as provided in paragraph b. of Section 2),
then the provisions of such separate agreement shall govern.
Section 6. Purchase by Shareholders. If, under applicable law, the Corporation
is prohibited from redeeming shares (as provided in paragraph a. of Section 2),
and the ESOP is prohibited or does not exercise its right to purchase the
shares, then the shares not so redeemed or purchased shall be offered to the
Shareholders of the Corporation (at no more than the Corporation's redemption
price), each of whom shall then have the right (but not the obligation) for
thirty (30) days from the date of such offer to purchase such shares. Each
Shareholder shall have the opportunity to purchase a percentage of such shares
equal to his proportionate ownership of all issued shares, and each
Shareholder's right to purchase his proportionate percentage of such shares
shall be assignable only to the other Shareholders.
Section 7. Amendments. The provisions of this Article VIII shall not be changed
by amendment, except by vote of the holders of more than fifty percent (50%) of
the shares entitled to vote thereon. No shares held in escrow shall be voted
directly or indirectly or counted for the purposes of such vote.
ARTICLE IX
INDEMNIFICATION
Section 1. Right to Indemnification. Each person (including here and
hereinafter, the heirs, executors, administrators, or estate of such person) (1)
who is or was a director or officer of the Corporation, (2) who is or was an
agent or employee of the Corporation other than an officer and as to whom the
Corporation has agreed to grant such indemnity, or (3) who is or was serving at
the request of the Corporation as its representative in the position of
director, officer, agent, or employee of another corporation, partnership, joint
venture, trust or other enterprise
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and as to whom the Corporation has agreed to grant such indemnity shall be
indemnified by the Corporation as of right to the fullest extent permitted or
authorized by current or future legislation or by current or future judicial or
administrative decision (but, in the case of any such future legislation or
decision, only to the extent that it permits the Corporation to provide broader
indemnification rights than permitted prior to such legislation or decision),
against any fine, liability, cost or expense, including attorneys' fees,
asserted against him or incurred by him in his capacity as such director,
officer, agent, employee, or representative, or arising out of his status as
such director, officer, agent, employee or representative.
Section 2. Advance of Costs, Charges and Expenses. Costs, charges and expenses
(including attorneys' fees) incurred by a person referred to in Section 1 of
this Article in defending a civil or criminal action, suit or proceeding shall
be paid by the Corporation in advance of the final disposition of such action,
suit or proceeding, upon receipt in the case of a director or officer, of an
undertaking by or on behalf of the director or officer to repay all amounts so
advanced in the event that it shall ultimately be determined that such director
or officer is not entitled to be indemnified by the Corporation as authorized in
this Article, and upon satisfaction of such other conditions as are required by
current or future legislation (but with respect to future legislation, only to
the extent that is provides conditions less burdensome to the director, officer,
employee, agent or representative, and to the Corporation, than those provided
previously). Such cost, charges and expenses incurred by other employees, agents
and representatives may be so paid upon such terms and conditions, if any, as
the Board deems appropriate. The Board may, in the manner set forth above, and
upon approval of such director, officer, employee, agent or representative of
the Corporation, authorize the Corporation's counsel to represent such person,
in any action, suit or proceeding, whether or not the Corporation is a party to
such action, suit or proceeding.
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Section 3. Procedure for Indemnification. Any indemnification or advance of
costs, charges and expenses under this Article shall be made promptly, and in
any event within 60 days, upon the written request of the director, officer,
employee, agent or representative. The right to indemnification or advances as
granted by this Article shall be enforceable by the director, officer, employee,
agent or representative in any court of competent jurisdiction, if the
Corporation denies such request, in whole or in part, or if no disposition
thereof is made within 60 days. Such person's costs and expenses incurred in
connection with successfully establishing his right to indemnification, in whole
or in part, in any such action shall also be indemnified by the Corporation. It
shall be a defense to any such action that the claimant has not met the
applicable standard of conduct, if any, required as a prerequisite to such
indemnification or advances under the General Corporation Act, but the burden of
proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including the Board or a committee thereof, its independent legal
counsel, and its Shareholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he has met the applicable standard of conduct, nor the
fact that there has been an actual determination by the Corporation (including
the Board or a committee thereof, its independent legal counsel, and its
Shareholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
Section 4. Other Rights: Continuance of Right to Indemnification. The
indemnification or advance of costs, charges and expenses provided by this
Article shall not be deemed exclusive of any other or future rights to which a
person seeking indemnification may be entitled under any law (common or
statutory), agreement, vote of Shareholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding office or while employed by or acting as agent
for the Corporation. All rights to indemnification or advance of costs, charges
and expenses under this Article shall be deemed to be a contract between the
Corporation and each director, officer, employee, agent or representative of the
Corporation described in Section 1 of this Article who serves or served in such
capacity at any time while this Article is in effect. Any repeal or modification
of this Article or any repeal or modification of relevant provisions of the
General Corporation Act or any other applicable laws shall not in any way
diminish any rights to indemnification of such director, officer, employee,
agent or representative or the obligations of the Corporation arising hereunder.
Section 5. Insurance. The Corporation may maintain insurance, at its expense, to
protect itself and any person who is or was or has agreed to become a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him or on his behalf in any such
capacity, or arising out of his status as such, whether or not the Corporation
would have the legal power to directly indemnify him against such liability.
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Section 6. Savings Clause. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director and officer, and each
employee, agent and representative of the Corporation described in Section 1 of
this Article, as to costs, charges and expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement with respect to any action, suit
or proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the Corporation, to the full extent
permitted by an applicable portion of this Article that shall not have been
invalidated to the full extent permitted by applicable law.
ARTICLE X
SEAL
The Board shall provide a corporate seal which shall be in circular
form.
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ARTICLE XI
AMENDMENT
These Bylaws may be altered, amended, supplemented or repealed, and new
Bylaws adopted, by the Shareholders.
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